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Second Circuit Once Again Hears Appeal In U.S. V. Hoskins


To call U.S. v. Hoskins a long-drawn out Foreign Corrupt Practices Act enforcement action would be an understatement.

In 2013, the DOJ criminally charged Lawrence Hoskins (a United Kingdom national and former senior vice president for the Asia region for France-based Alstom) with conspiracy to violate the FCPA’s anti-bribery provisions among other charges. (See here for the prior post). The conduct at issue alleged occurred between 2002 and 2004.

Unlike certain of his co-defendants who pleaded guilty, Hoskins put the DOJ to its burden of proof and at the trial court level argued in a motion to dismiss that the FCPA charges should be dismissed “on the basis that [the indictment] charges a legally invalid theory that he could be criminally liable for conspiracy to violate the FCPA even if the evidence does not establish that he was subject to criminal liability as a principal, by being an “agent” of a “domestic concern.” (See here for the prior post).

As stated by the trial court Judge Janet Bond Arterton (D.Conn.) in a 2015 decision (see here), the disputed issue was “whether a nonresident foreign national could be subject to criminal liability under the FCPA, even where he is not an agent of a domestic concern and does not commit acts while physically present in the territory of the United States, under a theory of conspiracy or aiding and abetting a violation of the FCPA by a person who is within the statute’s reach.” Judge Arterton answered the question no and concluded that accomplice liability could not extend to Hoskins under the circumstances of the case and thus granted the motion to dismiss.

After the DOJ’s motion for reconsideration was rejected, the DOJ appealed to the Second Circuit.

In its 2018 decision (see here for the prior post), the Second Circuit court rejected the DOJ’s expansive jurisdictional theory of prosecution. As stated by the court:

“[W]e are asked to decide whether the government may employ theories of conspiracy or complicity to charge a defendant with violating the Foreign Corrupt Practices Act (“FCPA”), even if he is not in the categories of persons directly covered by the statute. We determine that the FCPA defines precisely the categories of persons who may be charged for violating its provisions. The statute also states clearly the extent of its extraterritorial application. Because we agree with the district court that the FCPA’s carefully-drawn limitations do not comport with the government’s use of the complicity or conspiracy statutes in this case, we AFFIRM the district court’s ruling barring the government from bringing the charge in question.”

Notwithstanding the above, in its opinion the Second Circuit allowed the government to pursue FCPA charges based on the factual issue of whether Hoskins was “an agent of a domestic concern.” As stated by the court:

“Provided that the government makes this showing, there is no affirmative legislative policy to leave his conduct unpunished, nor is there an extraterritorial application of the FCPA. Accordingly, the government should be allowed to argue that, as an agent, Hoskins committed the first object by conspiring with employees and other agents of Alstom U.S. and committed the second object by conspiring with foreign nationals who conducted relevant acts while in the United States.”

Six years after being charged and approximately 15 years after the alleged conduct at issue took place, in Fall 2019 the trial actually occurred and Hoskins “was found guilty … for his role in a multi-year, multimillion-dollar foreign bribery scheme and a related money laundering scheme.” (See here for the prior post).

However, in a major setback for the DOJ in February 2020 Judge Arterton granted Hoskins motion for acquittal on all FCPA charges. (See here for the prior post). In pertinent part, Judge Arterton concluded “that even when drawing all reasonable inferences in the Government’s favor, the evidence adduced at trial cannot support the conclusion that Mr. Hoskins acted subject to API’s control such that Mr. Hoskins was an agent of API.”

Judge Arterton denied Hoskin’s motion for acquittal on the five money laundering charges he was convicted of by the jury. In sentencing Hoskins for the money laundering violations, Judge Arterton significantly rejected the DOJ’s 7-9 year sentencing recommendation and sentenced Hoskins to approximately 1 year.  (see here for the prior post).

Even so, the case was not over as the DOJ quickly filed a notice of appeal of Judge Arterton’s grant of the motion for acquittal on the FCPA charges. (See here for the prior post). As stated by the DOJ in its opening brief, the issue on appeal was as follows:

“Whether, viewing the evidence in a light most favorable to the guilty verdict, a rational jury could have found that the defendant, a senior executive in a corporate support function of multinational holding company Alstom S.A., was an agent of a Connecticut-based Alstom business, Alstom Power Inc. (“API”), in the course of his assisting API to secure a power plant contract in Indonesia, including by hiring consultants to funnel bribes to Indonesian officials, where the defendant repeatedly followed API’s instructions and API was in charge of all facets of the project.”

For his part, Hoskins also filed a cross-appeal and his opening brief framed the issues as follows:

“First, whether Mr. Hoskins’s Speedy Trial Act and Sixth Amendment rights were violated by the extraordinary delay between his indictment in July 2013 and eventual trial in October 2019, particularly in light of the fact that Mr. Hoskins’s alleged involvement in the charged offenses ceased in 2004.

Second, whether the district court gave an erroneous jury instruction with respect to Mr. Hoskins’s withdrawal defense by failing to instruct the jury that resignation from the business enterprise through which the charged crimes were committed could constitute withdrawal if, following that resignation, Mr. Hoskins severed all contact with his alleged co-conspirators, performed no further acts in furtherance of the offense and received no benefit from the offense.

Third, whether the government failed to establish venue in the District of Connecticut for Counts Nine, Ten and Twelve, the substantive money-laundering offenses, each of which involved discrete transfers of funds from Maryland to Indonesia in violation of 18 U.S.C. 1956(a)(2)(A).”

Earlier this week, the Second Circuit heard oral argument on the appeal and cross-appeal. (See here for a recording of the oral arguments).

The first time the Second Circuit heard a Hoskins appeal the gap between oral argument and decision was approximately 1.5 years.

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